United States v. Derose

United States Court of Appeals,
Eleventh Circuit.
No. 94-8730.
UNITED STATES of America, Plaintiff-Appellee,
v.
Donald DEROSE, Roberta Ould, Defendants-Appellants.
Feb. 14, 1996.
Appeals from the United States District Court for the Northern
District of Georgia. (No. 1:93-CR-236), Jack T. Camp, Judge.
Before HATCHETT and CARNES, Circuit Judges, and OWENS*, Senior
District Judge.
HATCHETT, Circuit Judge:
A jury in the Northern District of Georgia convicted
appellants, Roberta Ould and Donald Derose, of one count of
possession with intent to distribute marijuana. On appeal,
appellants argue that the Speedy Trial Act and the Sixth Amendment
barred their prosecution; they also challenge the sufficiency of
the evidence that supports their convictions. We reverse.
FACTS
Ould and Derose's indictment and conviction stem from a
reverse sting operation DEA Agent Frank Smith conducted while
acting in an undercover capacity. Agent Smith utilized a
confidential informant who, at Smith's direction, advised
individuals in the community that she knew of someone who wanted to
sell marijuana. Ould subsequently contacted the confidential
informant and informed her that she had located a buyer who wanted
*
Honorable Wilbur D. Owens, Jr., Senior U.S. District Judge
for the Middle District of Georgia, sitting by designation.
to purchase marijuana. Ould and the confidential informant made
arrangements for the buyer, Derose, to meet Agent Smith at the
Atlanta, Georgia, home of Ould's mother.
Ould, Agent Smith and the confidential informant met at Ould's
mother's home on July 23, 1991. Agent Smith informed Ould that,
due to safety considerations, he did not have the marijuana with
him, but had stored it at a nearby location. Derose then entered
the kitchen where the parties were located, and Ould introduced
Agent Smith to Derose. Derose and Agent Smith left the kitchen and
continued their conversation in the garage where Derose asked Agent
Smith whether he had the marijuana with him. Agent Smith again
replied that he had stored the marijuana at a nearby location.
When Agent Smith asked Derose if he had the money for the
marijuana, Derose showed Agent Smith a paper bag containing a large
quantity of money. Ould then entered the garage and the parties
began a discussion about the transfer of the marijuana.
Agent Smith informed Ould and Derose that the marijuana was
located in a vehicle in a nearby parking lot and that once they
arrived at the parking lot, he would give them the key to the
vehicle so they could use the vehicle to transport the marijuana to
Ould's mother's house. Agent Smith also stated that once the
transfer of marijuana was completed, he would return to Ould's
mother's house to retrieve the vehicle. Agent Smith and the
confidential informant left Ould's mother's house in the agent's
vehicle, and Ould and Derose followed them in another vehicle to a
MARTA station parking lot. In the parking lot, Agent Smith again
asked Derose if he could see the money for the marijuana, and
Derose showed him a paper bag that Agent Smith believed contained
approximately $70,000 to $80,000. After showing Agent Smith the
money, Derose exited the vehicle, and stated that the paper bag
contained $70,000 and that he had given Ould $5,000.
Agent Smith then handed Derose the key to the rear compartment
of a Ford Bronco containing the marijuana and informed Derose that
he could inspect the marijuana to see if he liked it. Agent Smith
also told Derose that if he did not like the marijuana, he would
give Derose a couple of bucks so that he could head back up the
road. Derose walked over to the Bronco, opened the rear window,
and inspected the packages of marijuana. After Derose completed
the inspection of the marijuana, he took the key out of the lock
and walked away. Agent Smith then gave the arrest signal to
previously positioned law enforcement officers who arrested Derose
in the parking lot and Ould in the vehicle. A search of Ould and
Derose's vehicle produced a paper bag containing $70,000 and an
additional $5,000 in the glove compartment. Law enforcement
officials videotaped the transaction in the parking lot.
PROCEDURAL HISTORY
On July 23, 1991, the day of the arrest, the government filed
a criminal complaint charging Derose and Ould in connection with
their unsuccessful attempt to procure marijuana. On July 25, 1991,
a magistrate judge conducted a probable cause hearing, found
probable cause, but released Derose and Ould on bond subject to
pretrial supervision. One year and four days after the arrest, on
July 27, 1992, the government filed a motion to dismiss the
complaint. The magistrate judge entered an order dismissing the
complaint on July 30, 1992. On May 19, 1993, the government
obtained an indictment charging Ould and Derose with one count of
conspiracy to possess with intent to distribute marijuana, in
violation of 21 U.S.C. § 846, and one count of possession with
intent to distribute marijuana, in violation of 21 U.S.C. § 841.
In June 1993, Derose and Ould filed a motion to dismiss the
indictment asserting that although the magistrate judge did not
specify whether the dismissal of the original complaint was with
prejudice, the dismissal should have been entered with prejudice
based on a violation of the Speedy Trial Act, 18 U.S.C.A. § 3161 et
seq. (West 1985), and the Due Process Clause of the Fifth
Amendment. Derose and Ould also asserted that the indictment
should be dismissed for violating the Sixth Amendment's guarantee
of a speedy trial. Following a hearing, the magistrate judge
recommended that the complaint be dismissed with prejudice. The
magistrate judge noted that the one-year delay between the probable
cause hearing and the dismissal of the complaint was attributable
to the "gross negligence" of the assistant United States attorney
assigned to the case. The magistrate judge did not recommend,
however, that the entire indictment be dismissed; rather, the
magistrate judge recommended that only the charge contained in the
dismissed complaint—the conspiracy charge—should be dismissed and
that the defendants should stand trial on the substantive
possession count. The magistrate judge also rejected Derose and
Ould's argument that the substantive count contained in the
indictment should also be dismissed because it merely "gilded" the
conspiracy count on the grounds that the substantive and conspiracy
charges were distinct offenses. Lastly, the magistrate judge,
relying on Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d
101 (1972), rejected the appellants' Sixth Amendment claim on the
merits. The magistrate judge found that the length of delay,
reason for the delay, and the defendant's assertion of the right
each weighed slightly in Derose and Ould's favor, but concluded
that they had not demonstrated prejudice as a result of the
government's delay in prosecuting them. The magistrate judge
reasoned that no prejudice existed because the reliability of the
evidence consisting of Agent Smith's eyewitness testimony and audio
and videotapes had not been eroded. Derose and Ould filed
objections to the magistrate judge's report and recommendation that
the substantive count should not be dismissed.
The district court overruled Ould and Derose's objections and
adopted the magistrate judge's report and recommendation. The
district court agreed with the magistrate judge's conclusion that
the original indictment contained only a conspiracy charge, and
that the gilding exception did not apply because the substantive
and conspiracy charges contained separate elements. The district
court also found that the Sixth Amendment right to a speedy trial
was not implicated in this case because Derose and Ould were not
accused of the substantive offense until the indictment was handed
down, and because the length of time between the indictment and the
trial—eight months—did not trigger a Sixth Amendment inquiry.
Alternatively, the district court rejected the Sixth Amendment
claim on the merits.
On January 13, 1994, Ould and Derose's trial commenced in the
United States District Court for the Northern District of Georgia.
The jury returned a guilty verdict as to the sole remaining count
of the indictment, possession with intent to distribute marijuana,
on January 19, 1994. The district court sentenced Ould to eighteen
months in prison and a three-year term of supervised release.
Derose received a twenty-four month prison sentence and a
three-year term of supervised release. The district court also
ordered him to pay a fine of $4,000.
ISSUES
The issues are: (1) whether the indictment should have been
dismissed as a violation of the Speedy Trial Act because the
complaint contained the substantive charge; (2) whether the lower
court erred in rejecting appellants' Sixth Amendment claim; and
(3) whether the evidence was sufficient to support appellants'
convictions.
CONTENTIONS
First, Ould and Derose contend that the initial complaint also
contained the substantive possession charge because the complaint
cited the substantive statute, 21 U.S.C. § 841(a)(1), and, as
required, tracked its statutory language on the complaint form.
Alternatively, they argue that this court should adopt the
reasoning of United States v. Nixon, 634 F.2d 306 (5th Cir.1981),
and recognize a "gilding" exception to the general rule that the
Speedy Trial Act requires only the dismissal of a charge contained
in a dismissed complaint. Second, Ould and Derose contend that the
substantive count "gilded" the conspiracy count.
Next, Ould and Derose contend that the Sixth Amendment's
speedy trial limitations apply to preindictment delay once a
defendant has been accused. They assert that the date of their
arrest constitutes the starting point for the Sixth Amendment
inquiry and that the Sixth Amendment applies to all charges
resulting from their alleged criminal conduct.
Ould and Derose take issue with the weight the district court
attributed to two of the Barker factors: the defendant's assertion
of the right and reasons for the delay. They also assert that the
district court erroneously held them to a higher burden of proof as
to the fourth Barker factor—prejudice to the defendant—when it
required a showing of significant actual prejudice. Lastly, Derose
and Ould argue that Derose's mere possession of the key to the
Bronco does not indicate that he had dominion or control over the
marijuana. They claim that Derose never indicated to Agent Smith
that the two had reached an agreement, and that his inspection of
the marijuana constituted an insufficient basis for the finding
that he had actual or constructive possession of the marijuana.
The government contends that the initial complaint contained
only the conspiracy charge. It argues that the legislative history
of the Speedy Trial Act suggests that the dismissal sanction should
not be applied to subsequent charges merely because they arise from
the same criminal transaction as those offenses charged in the
original complaint. The government acknowledges that some courts
have recognized a "gilding" exception to the Speedy Trial Act, but
asserts that this court has never expressly adopted or applied this
exception. Alternatively, the government asserts that the gilding
exception is inapplicable to this case because the conspiracy and
substantive charges are separate and distinct offenses requiring
proof of different elements.
The government also contends that the Sixth Amendment does not
apply to this case because the appellants were not "accused" of the
substantive charge until the grand jury handed down the indictment
on May 19, 1993, ten months after the dismissal of the complaint.
Additionally, the trial on the substantive possession charge
commenced less than eight months after the date of the indictment
and was, therefore, four months shy of the one-year delay period
that has traditionally triggered the Sixth Amendment inquiry.
Alternatively, the government argues that Ould and Derose's Sixth
Amendment claim fails on the merits. Lastly, the government argues
that because Derose possessed the key to the Bronco and reached
into the Bronco and inspected the marijuana, he exercised
sufficient dominion and control to constructively possess the
drugs.
DISCUSSION
A. The Speedy Trial Act
The Speedy Trial Act requires the government to file an
indictment within thirty days from the date of the arrest or
service of the summons. 18 U.S.C.A. § 3161(b) (West 1985). The
government's failure to comply with this provision may lead to the
dismissal of the charge against the defendant:
If, in the case of any individual against whom a complaint is
filed charging such individual with an offense, no indictment
or information is filed within the time limit required by
section 3161(b) ... of this chapter, such charge against that
individual contained in such complaint shall be dismissed or
otherwise dropped.
18 U.S.C.A. § 3162(a)(1) (West 1985) (emphasis added). A dismissal
with prejudice, however, is not mandated upon a showing that the
government failed to comply with the provisions of section 3161(b).
Rather, section 3162(a) requires the district court to balance the
statutory factors enumerated in that section in order to determine
whether the government's preindictment delay merits a dismissal
with prejudice. United States v. Godoy, 821 F.2d 1498, 1505 (11th
Cir.1987); 18 U.S.C.A. § 3162(a) (West 1985). After considering
the statutory factors, the choice of sanction is committed to the
sound discretion of the district court. Godoy, 821 F.2d at 1505.
The parties do not challenge the district court's ruling that
the original complaint contained a conspiracy charge that should be
dismissed with prejudice as a result of the government's
preindictment delay. Derose and Ould, however, contend that the
complaint also contained a substantive charge—possession with
intent to distribute—that should have been dismissed with
prejudice. Whether Derose and Ould should have been subjected to
trial on the indictment's second count charging them with
possession with intent to distribute marijuana depends on a
determination of whether the original complaint contained the
substantive charge. See 18 U.S.C.A. § 3162(a)(1) (West 1985). The
district court found that the complaint did not contain the
substantive charge. We review factual determinations for clear
error. United States v. Dyal, 868 F.2d 424, 426 (11th Cir.1989).
The July 23, 1991 criminal complaint against Derose and Ould
alleged that they did "conspire to violate 21 U.S.C. section
841(a)(1), in that the defendants did knowingly and intentionally
possess with intent to distribute a controlled substance...." We
agree with the district court's factual finding that the "best
reading" of the complaint is that it contains only a conspiracy
charge. Admittedly, the complaint tracked the statutory language
of 21 U.S.C. § 841(a)(1) when it alleged that they "did knowingly
and intentionally possess with intent to distribute a controlled
substance." We reject, however, Derose and Ould's assertion that
the mere presence of the statutory language of the substantive
offense demonstrates that the complaint contained the substantive
charge. A conspiracy allegation must state the substantive offense
that the defendants conspired to violate. See United States v.
Stanley, 24 F.3d 1314, 1319 (11th Cir.1994) (to prove conspiracy,
the government must demonstrate that two or more persons agreed to
commit the substantive offense); see also United States v.
Pollock, 926 F.2d 1044, 1049 (11th Cir.1991). The district court's
conclusion that the complaint contained only the conspiracy charge
did not constitute clear error.
B. Gilding Exception to the Speedy Trial Act
Ould and Derose invite this court to adopt a gilding
exception to the general rule that the Speedy Trial Act requires
dismissal of only the charge contained in the complaint. They rely
on United States v. Nixon, 634 F.2d 306, 309 (5th Cir.1981).1 The
Nixon court stated that " "[i]f the crimes for which a defendant is
ultimately prosecuted really only gild the charge underlying his
initial arrest and the different accusatorial dates between them
1
Decisions of the United States Court of Appeals for the
Fifth Circuit handed down prior to the close of business on
September 30, 1981, are binding precedent on the Eleventh
Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir.1981) (en banc ).
are not reasonably explicable, the initial arrest may well mark the
speedy trial provision's applicability as to prosecution for all
the interrelated offenses.' " Nixon, 634 F.2d at 309 (quoting
United States v. DeTienne, 468 F.2d 151 (7th Cir.1972), cert.
denied, 410 U.S. 911, 93 S. Ct. 974, 977, 35 L. Ed. 2d 274 (1973)).
Ould and Derose concede that the court in Nixon refused to apply
the gilding exception to the facts of that case; however, they
assert that this case is more suitable for its application. We
disagree.
Initially, we note that we do not decide whether a gilding
exception is even applicable to the Speedy Trial Act. But,
assuming that such an exception exists, it would be inapplicable to
the facts of this case. Nixon involved an initial arrest and
subsequent voluntary dismissal on a charge of counterfeiting, and
a subsequent indictment on a perjury charge arising from the
defendant's testimony to a grand jury investigating the original
counterfeiting allegation. The court in Nixon rejected the
defendant's assertion that the Speedy Trial Act barred his later
prosecution on the perjury charge on the grounds that the perjury
charge gilded the counterfeiting charge: "Even though proof of
perjury must rely in part on the same facts as would support a
counterfeiting charge, perjury is a distinct and separate offense."
Nixon, 634 F.2d at 309.
Ould and Derose attempt to distinguish this case from Nixon by
arguing that the conspiracy and substantive counts in the complaint
against them arose from the same events and that both charges are
contained in the complaint. They contend, therefore, that
application of the gilding exception is appropriate here because
the two counts are not separate and distinct. This argument
suggests that Congress intended the Speedy Trial Act's dismissal
sanction to apply when a later complaint is filed that arose out of
the same transaction or occurrences that provided the basis for an
earlier complaint which was dismissed. Moreover, the argument
suggests that conspiracy charges necessarily guild the substantive
offense due to the inability to divorce conspiracy allegations from
substantive offenses. The appellants' argument lacks merit for two
reasons. First, Congress considered and declined to follow the
suggestion that the Speedy Trial Act's dismissal sanctions should
be applied to a subsequent charge if it arose from the same
criminal transaction or event as those detailed in the initial
complaint or were known or reasonably should have been known at the
time of filing the initial complaint. United States v. Napolitano,
761 F.2d 135, 137-38 (2d Cir.1985) (citing A. Partridge,
Legislative History of Title I of the Speedy Trial Act of 1974, pp.
194-95, Federal Judicial Center, 1980). Second, it is well
established that conspiracies and substantive offenses are separate
and distinct offenses requiring proof of different elements. E.g.,
Callanan v. United States, 364 U.S. 587, 593, 81 S. Ct. 321, 325, 5
L. Ed. 2d 312 (1961). Thus, it is questionable whether a substantive
offense can ever gild a conspiracy charge, since they are separate
and distinct offenses.
Although we are not deciding whether a gilding exception is
even applicable to the Speedy Trial Act, we note that this court's
decision in United States v. Brooks, 670 F.2d 148 (11th Cir.1982),
raises some doubt about the vitality of the gilding exception in
this circuit. In Brooks, an inmate in a federal prison, while
being escorted to administrative detention for threatening a
correction officer, assaulted another correction officer. The
inmate received a thirty-five day sentence in disciplinary
segregation for his initial infraction of threatening a correction
officer. During the inmate's thirty-five days in disciplinary
segregation, another investigation began involving the assault on
the second correction officer, which resulted in a federal grand
jury indictment four months after that incident. The inmate moved
to dismiss the indictment contending that the four-month interval
between the commission of the offense and the indictment violated
the Speedy Trial Act. The inmate argued that his placement in
disciplinary segregation during an FBI investigation of his assault
on the second correction officer constituted an "arrest" and that
the four month delay between the time of his segregation and the
issuance of the indictment violated the Speedy Trial Act.
This court agreed with the district court's rejection of the
inmate's Speedy Trial Act motion on the ground that neither the
administrative nor disciplinary segregation placed the inmate in
the status of an accused so as to trigger the inmate's Sixth
Amendment speedy trial rights or his right under the Speedy Trial
Act. Brooks, 670 F.2d at 151. This court also agreed with the
district court's finding that officials placed the inmate in
disciplinary segregation because of his initial infraction of
threatening the correction officer and not for his assault upon the
correction officer. In affirming the district court's rulings,
this court stated that "an arrest triggers the running of section
3161(b) of the Speedy Trial Act only if the arrest is for the same
offense for which the accused is subsequently indicted." Brooks,
670 F.2d at 151 (emphasis added). Thus, this passage raises some
doubt as to the viability of the gilding exception in this circuit.
While we do not decide the fate of the gilding exception in this
ruling, we agree with the district court's conclusion that the
substantive offense contained in the indictment did not gild the
conspiracy charge found in the complaint.
C. Sixth Amendment Speedy Trial Guarantee
Ould and Derose contend that the delay in this case
constituted a violation of their constitutional right to a speedy
trial under the Sixth Amendment. They argue that the Supreme Court
has interpreted the Sixth Amendment to limit preindictment delay
once a defendant has been accused. See Dillingham v. United
States, 423 U.S. 64, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975). They
also argue that because their indictment for the substantive
offense of possession arose from the same activities that formed
the basis of their earlier arrest for conspiracy, their Sixth
Amendment speedy trial rights attached on the date of their
original arrest. We disagree.
In Dillingham, the defendants were arrested or "accused" on
charges of automobile theft in violation of 18 U.S.C. §§ 371, 2312,
and 2313. The defendants were indicted twenty-two months after the
arrest on those same charges. The Supreme Court found a Sixth
Amendment violation. Dillingham, 423 U.S. at 65, 96 S.Ct. at 304.
In this case, however, Ould and Derose were originally charged with
conspiracy under 21 U.S.C. § 846 in July 1991. These charges were
dismissed in July 1992, but the government subsequently obtained an
indictment in May of 1993 on conspiracy and the substantive
possession charge. Since the district court ultimately dismissed
the conspiracy charge, Ould and Derose may only claim a Speedy
Trial Act violation for the possession charge. Notwithstanding the
fact that proof of the possession charge relied on the same facts
that supported the conspiracy charge, possession is a distinct and
separate offense. Callanan v. United States, 364 U.S. 587, 593, 81
S. Ct. 321, 325, 5 L. Ed. 2d 312 (1961). Therefore, Derose and Ould
were not "accused" of the possession charge until the May 1993
indictment. The Sixth Amendment's Speedy Trial Clause does not
attach before a defendant is accused or arrested. United States v.
Marion, 404 U.S. 307, 317, 92 S. Ct. 455, 462, 30 L. Ed. 2d 468
(1971).
The record also shows that the delay between the time of
Derose and Ould's accusation and arrest and their trial for the
possession charge was approximately eight months. This eight-month
delay is insufficient to merit a Sixth Amendment speedy trial
violation inquiry. See Doggett v. United States, 505 U.S. 647, 652
n. 1, 112 S. Ct. 2686, 2691 n. 1, 120 L. Ed. 2d 520 (1992)
(recognizing that preaccusation delay approaching one year is the
point at which courts deem the delay presumptively prejudicial and
unreasonable enough to trigger the Sixth Amendment inquiry).
Therefore, Ould and Derose have not demonstrated that their Sixth
Amendment rights to a speedy trial have been implicated.
D. Sufficiency of the Evidence
Finally, Ould and Derose challenge the sufficiency of the
evidence used to convict them. They argue that the evidence was
insufficient to show that Derose had "possession" of the marijuana.
They argue that at best the evidence shows that he had access to
the marijuana rather than actual or constructive possession. We
review the sufficiency of the evidence de novo, viewing all
reasonable inferences in the light most favorable to the
government. United States v. Ramsdale, 61 F.3d 825, 828 (11th
Cir.1995).
We must decide whether the evidence in the record shows that
Derose had actual or constructive possession. In order to find
that a defendant has actual possession, we must find that the
defendant either had physical possession or that he had actual
personal dominion over the thing allegedly possessed. United
States v. Wynn, 544 F.2d 786, 788 (5th Cir.1977). The record is
devoid of any evidence demonstrating that Derose either physically
placed marijuana in or removed marijuana from the back of the
vehicle. Moreover, the record does not show that Derose actually
drove the vehicle containing marijuana or possessed a key to the
ignition of that vehicle. Therefore, the evidence in the record is
insufficient to find that Derose had actual possession of the
marijuana.
Derose's conviction may be upheld, however, if the record
reveals that he had constructive possession of the marijuana.
Constructive possession exists when a person "has knowledge of the
thing possessed coupled with the ability to maintain control over
it or reduce it to his physical possession even though he does not
have actual personal dominion." Wynn, 544 F.2d at 788. Similarly,
a court may find constructive possession by finding ownership,
dominion, or control over the contraband itself or dominion or
control over the premises or the vehicle in which the contraband
was concealed. United States v. Martinez, 588 F.2d 495, 498 (5th
Cir.1979). The government, relying on Martinez, contends that
Derose was in constructive possession of the marijuana at the
moment he received the key to the vehicle containing the marijuana.
In Martinez, the defendant was pulled over by a Border Patrol
agent. Minutes before the defendant was pulled over, the agent had
stopped another vehicle driven by one Harmon. Harmon's vehicle
reeked of marijuana, and the agent suspected that the marijuana was
contained in the trunk of the vehicle. Harmon stated that he did
not have a key to the trunk of the vehicle, and he also indicated
that he knew the defendant who the agent suspected was following
Harmon. The agent asked the defendant if he had a key to Harmon's
vehicle, and the defendant indicated that he did. The agent took
the keys from the defendant and opened both the trunk of Harmon's
vehicle and the two chests contained in the trunk. The agent found
marijuana. The court found that the defendant was in constructive
possession of the marijuana found in Harmon's vehicle by virtue of
his possession of the keys to the trunk and chests. Martinez, 588
F.2d at 498-99.
In this case, however, Agent Smith provided Derose with a key
to the back hatch of the truck containing marijuana. The record
shows that this key would not have started the vehicle, but only
operated the back window. Moreover, the record revealed that
Derose, using the key, lowered the window, inspected the marijuana,
and raised the window after which time he began to walk away.
Derose did not own the vehicle; it was government property used as
part of the sting operation.
A more telling aspect of this transaction which militates
against finding that Derose had constructive possession is the
absence of any evidence indicating the consummation of a deal to
purchase the marijuana. The lack of an agreement between Derose
and Agent Smith to actually sell or transfer the marijuana to
Derose removes the indicia of "constructive possession" which may
have arisen from Derose's mere possession of the key. Since the
record shows that Derose neither agreed to purchase the marijuana
before he received the key to the vehicle to inspect the marijuana
nor signaled his acceptance after briefly inspecting the marijuana,
we cannot find that he had dominion or control over the vehicle or
marijuana or that he had the ability to reduce the marijuana to his
actual possession.2 Since the evidence against Derose is
insufficient to sustain his conviction for possession of marijuana,
Ould's conviction for aiding and abetting him cannot stand.
CONCLUSION
For the foregoing reasons, we reverse the convictions of
Donald Derose and Roberta Ould.
2
We do not hold that receipt of a key coupled with an
inspection of a vehicle containing drugs or other illegal
substances can never form a basis for deeming a person to be in
constructive possession. See United States v. Martorano, 709
F.2d 863, 871 (3d Cir.1983) (finding a defendant to be in
constructive possession when he possessed a key to a vehicle
containing a controlled substance and had previously entered into
an agreement to purchase and transfer drugs).
REVERSED.